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[2018] ZAGPJHC 673
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S v Cindi (SS125/2017) [2018] ZAGPJHC 673 (23 November 2018)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
LOCAL SEAT, JOHANNESBURG
CASE NO: SS 125/2017
DATE:
23 NOVEMBER 2018
In the matter between:
THE STATE
and
CINDI, MUSA
GILBERT ACCUSED
JUDGMENT
WRIGHT J
1.
The
accused, Mr Cindi is a 44 year old man charged with six counts:
Count 1 – Murder – in that on 23 August 2017 at Jabulani,
Soweto he murdered Grant Mtolo.
Count 2 – Robbery with aggravating circumstances – in
that at the same time and place he robbed Grant Mtolo, Percy
Mollo
and Ethel Irene Mollo of R23 350.
Count 3 – Attempted murder – in that at the same time and
place he attempted to kill Ethel Irene Mollo by shooting
at her with
a firearm.
Count 4 – Attempted murder – in that at the same time and
place he attempted to kill Percy Mollo by shooting at him
with a
firearm.
Count 5 – Unlawful possession of a firearm.
Count 6 – Unlawful possession of ammunition.
2.
Ms
Ranchod appeared for the state and Mr Mavatha appeared for Mr Cindi.
3.
Mr
Cindi pleaded not guilty. He gave no plea explanation but made a
number of admissions under
section 220
of the
Criminal Procedure Act
51 of 1977
.
4.
The
incident in question happened in Jabulani, Soweto. During the trial
the place names Zola or Zola 1 were used interchangeably
with the
place name Jabulani. Nothing turns on this.
5.
Ms
Ethel Irene Mollo testified. On 23 August 2017 she left Absa bank,
Maponya Mall branch in Soweto. She left in the company of
her two
sons, Mr Grant Mtolo and Mr Percy Mollo. They has just drawn R23 350
in cash so that they could pay a firm of undertakers
for the funeral
expenses of Ms Mollo’s daughter, Lindiwe, who had died on 17
August
2017. They had spent about 10 – 15 minutes in the bank. Ms
Mollo could not estimate the time of day at which they had
been at
the bank other than to say that it was about 9am or 10am. Grant drove
in his car from the bank to the funeral parlour.
Ms Mollo sat next to
him and Percy sat in the back. They stopped at the undertakers. Ms
Mollo got out of the car. In her hand she
had a bag which she thought
contained the money. She did not realise that the money was still in
the car. As she was about to climb
the stairs to the undertakers, she
looked back and saw a man, unknown to her, dragging Percy out of the
car. A white motor vehicle
was parked just ahead of their car. Grant
was standing next to the car, feeling dizzy, having been hit on the
head by a firearm.
The unknown man told Ms Mollo to give her the
money.
6.
Ms
Mollo saw a total of two unknown men participating in the attack. One
of the men had attacked her and Grant and the other man
had been
fighting with Percy. When the man had demanded the money of her he
had threatened to kill her. He fired a shot into the
air. He did so
when he was so close to her that the sound hurt her ears. He was
about an arm’s length away. She got a good
look at him. She
identified Mr Cindi in court as her attacker. She had looked at him,
face to face when he grabbed her bag. He
pushed her to the ground.
After she got up she went to the other side of the car. She saw Percy
crying and asking her why they
had killed his brother. Grant was
lying dead on the ground. Mr Cindi got into the getaway car which
then departed.
7.
According
to the common cause autopsy report, Percy died of a penetrating
gunshot wound to the chest. He had three other bullet
wounds, one to
the left upper arm and two over the left knee. A spent bullet was
found “
buried
over the right lower back, situated at 112cm above the right heel and
9cm from the midline.”
8.
Ms
Mollo testified that the attackers took the R23 350. Ms Mollo heard
only one gunshot. The accused, Mr Cindi, shot at Ms Mollo
when she
was on the ground. The bullet grazed the side of her head. She was
treated in hospital and discharged straight away.
9.
In
cross–examination Ms Mollo conceded that she had not seen Mr
Cindi before the incident and that she had not seen the two
attackers
get out of their car. She also did not see Percy or Grant being shot.
She was clear that she had seen the accused face
to face when he
grabbed her bag. She described her attacker as having broad, ugly
lips. In cross-examination it was put to Ms Mollo
that the accused
took no part in the attack.
10.
Ms
Mollo told the police that she would be able to identify her
attacker. About 10 or 14 days after the incident she went to the
office of the investigating officer, Colonel Ndwandwe. On his laptop
he showed her photographs of a number of men. He scrolled
through the
photographs. He showed her about 4 or 5 photos of different men. They
were clearly not her attacker. Then she immediately
pointed to a
photo of the man who had been her attacker. In court, Ms Mollo
identified photos G2-8, including the small side photos
at G2, G6 and
G8 as those shown to her by Colonel Ndwandwe. In court she said that
her attacker and the person in photos G2-8 was
the same person,
namely the accused.
11.
Photos
G2-10 depict scenes in a bank.
12.
In
cross-examination it was not put to Ms Mollo that the accused was not
the person in photos G2-8. It was stated to Ms Mollo that
this aspect
of the case would be dealt with later.
13.
Common
cause ballistic evidence established that at least two 9mm pistols
had been used in the attack.
14.
Mr
Percy Mollo testified. He and his mother and brother had spent about
15 minutes in the queue at the bank. At the teller, they
had spent
about 20 minutes, giving a total time of about 35 minutes in the
bank. Percy was not sure of when they had arrived at
the bank but he
estimated that it was about 10am. When he and his mother and brother
walked out of the bank he noticed a suspicious
looking man. The man
was holding a cellphone to his ear and looking around. He looked at
Percy and then looked away.
15.
Grant
drove his dark green Audi A4 to the funeral parlour. Percy sat in the
front next to Grant. Ms Mollo sat in the back. Grant
stopped the car
in Jabulani outside the funeral parlour. The journey from the bank
had taken about 15 minutes. At about 12 noon,
as Grant stopped his
car, a white Chevrolet Spark stopped in front of Grant’s car
and two men got out, each holding a firearm.
One of the men went to
Grant’s side of the car. The other came to Percy’s side.
Percy tried to get out. The man said
“
Voetsek,
go back into the car.”
The man spoke in isiZulu. The man hit Percy with a firearm on the
side of the head. The man said that he would shoot Percy.
16.
The
other man was busy with Grant. He hit Grant on the head with the butt
of a firearm. At that stage, Grant was standing next to
his car. The
man told Grant to get back into the car. The man kept asking Grant
“
Where
is the money?”
The
same man then went to Ms Mollo. He searched her, opened her coat and
asked her the same question about the money.
17.
Percy
identified the accused, Mr Cindi, in court as the person who had
attacked him.
18.
The
other man asked Grant for “
the
money
”.
That man also spoke isiZulu.
19.
The
accused told Percy not to look at him and kept asking him for the
money. Grant struggled with the other man. The accused, realising
that his accomplice had a problem with Grant went to go and help his
accomplice. Percy followed. The accused said to Percy, “
Voestek,
go back, where do you think you are going?”
Grant
and the other man fell down and the accused hit Grant with a firearm.
The accused shot twice at Grant while the accused was
standing right
next to Grant. When Grant was shot he was in a squatting position.
The other man was trying to cock his firearm.
He pointed it at Ms
Mollo and tried to shoot her.
20.
The
two men took the money and went towards the white car. Percy followed
and was shot in the left thigh by the accused. The accused
and the
other man went towards the white car and entered it through its back
doors. The car drove away.
21.
Percy
was taken to Jabulani hospital and then to Chris Hani hospital. He
refused to be admitted. The next day, he went to the Jabulani
police
station and signed a typed statement which I admitted in evidence as
exhibit H1. He also signed a handwritten statement,
exhibit H2(1-4).
The two statements are about the same set of events but the typed
version is not an exact copy of the handwritten
version. I admitted
these statements into evidence at the request of Mr Mavatha, he
having submitted that they contained allegations
prior to and
inconsistent with Percy’s evidence in court. Mr Mavatha had
cross-examined Percy to that effect. Ms Ranchod
did not object to the
statements being admitted into evidence.
22.
There
are differences between Percy’s prior written statements and
his evidence in court, but in my view they are so minor
as to be
irrelevant. In exhibit H1 Percy had not said that his attacker had
moved from Percy to Grant, while when he testified,
Percy had said
this. When challenged on this point in cross-examination Percy said
that as H1 had been made the day after the attack
he was still
traumatised. In my view, the difference is irrelevant. In exhibit H1
the attack is recorded in bare terms. Percy’s
testimony in
court was naturally more detailed.
23.
Percy
testified that on 28 August 2017 Colonel Ndwandwe had fetched Ms
Mollo and Percy and had taken them to his office at Jabulani
police
station. Colonel Ndwandwe had told Percy that he had video footage
taken at Absa bank. He asked Percy if he could recognise
anybody in
the footage. Percy viewed about 10 images on a laptop. These were
moving images of people moving in Absa bank. Percy
identified two
people. One was the suspicious man who had been outside the bank as
the family had left the bank. The other was
the accused. In court,
Percy identified the accused as the person in exhibit G2. The images
which Percy had seen on the laptop
in Colonel Ndwandwe’s office
were those in exhibit G, particularly G2.
24.
Percy
testified that the clothing of the person in photo G2 was the same
clothing as Percy’s attacker had worn during the
attack in
Jabulani.
25.
In
cross-examination, Percy conceded that he had never seen the accused
before the attack. It was put to Percy that Colonel Ndwandwe
had
influenced Percy and Ms Mollo to point out the accused. Percy denied
this.
26.
There
are minor differences between the evidence of Ms Mollo and that of
Percy. For example, Ms Mollo had said that she had sat
in the front
of their car on the way to the undertakers while Percy had it the
other way around. The differences are irrelevant.
27.
Colonel
Ndwandwe testified. He is an experienced detective, presently
involved in detective management. He was the investigating
officer
until October 2018. He received images of scenes in Absa from Warrant
Officer Khubheka. Ultimately, these images came from
Mr De Wet, an
investigator at Absa. Colonel Ndwandwe discussed the images with Mr
De Wet. In particular, he asked Mr De Wet about
an affidavit that Mr
De Wet had made about the case.
28.
After
Colonel Ndwandwe had discussed the matter with Mr De Wet he asked
Percy to view the images to see if he could identify culprits.
Percy
looked at still images at Colonel Ndwandwe’s office at the
Jabulani police station. Percy identified the accused as
his
attacker. On a later occasion, Ms Mollo went through the same process
and identified the accused as her attacker and as a person
in one of
the images on the laptop in Colonel Ndwandwe’s office. Colonel
Ndwandwe testified that he had shown both Ms Mollo
and Percy still
images rather than moving images. Colonel Ndwandwe had operated the
laptop and changed from one image to another
as Percy, and later Ms
Mollo had viewed each image.
29.
Colonel
Ndwandwe confirmed in evidence that exhibit G1 – 10 were
extracts or photos of scenes in Absa bank as received by
him from
Absa.
30.
Colonel
Ndwandwe denied that either he or Mr De Wet had influenced either Ms
Mollo or Percy to identify any person.
31.
It
was suggested to Colonel Ndwandwe in cross-examination that it was
improper for him, as investigating officer, to have conducted
what in
effect had amounted to an identification parade. He answered that it
was not a formal ID parade. In my view, nothing turns
on this. If it
is less than best practise for an investigating officer to have shown
the images to Ms Mollo and Percy, and I make
no finding on this
point, the evidence of Colonel Ndwandwe is not inadmissible. It is
relevant to the question of identification
and it is not prejudicial
to the accused. The image of the accused was one of a number of
images shown to Ms Mollo and to Percy.
32.
Colonel
Ndwandwe conceded that, prior to his having met Mr De Wet, neither Ms
Mollo nor Percy had given him facial descriptions
of the attackers,
other than Ms Mollo possibly having described her attacker by the
shape of his mouth. He confirmed that Ms Mollo
had immediately
identified her attacker when shown an image of the accused.
33.
I
admitted into evidence, as exhibit J, Colonel Ndwandwe’s
written statement of 15 September 2017. This was done at the request
of Mr Mavatha who submitted that it contained allegations
inconsistent with the evidence in court of Colonel Ndwandwe. Ms
Ranchod
did not object. In exhibit J, paragraph 6, Colonel Ndwandwe
had used the word “
footage
”
rather than the words “
still
images
”
when referring to what he had shown Percy. The Colonel testified that
perhaps he had used the wrong word in exhibit J. In
my view, nothing
turns on this.
34.
Paragraph
6 of exhibit J does however, contain a reference to the accused as a
person with a violent history and having been convicted
of murder for
which he is serving a 20 year sentence. This fact, if fact it is, is
no pointer to either the guilt or innocence
of the accused in the
present case and I leave it out of account in weighing the evidence.
35.
Colonel
Ndwandwe testified that he had, on the day he testified, that is
14 November 2018 made a written statement just before
he
testified. He testified that he had interviewed the accused at
Modderbee prison. He had warned the accused of his right to remain
silent and of the consequences of not remaining silent. He denied
that the accused had told him that he wanted to speak to a lawyer
first. He confirmed that the accused had chosen to remain silent.
Colonel Ndwandwe’s written warning statement, exhibit P1-15,
is
referred to below.
36.
I
admitted into evidence, as exhibit K, the written statement of
Colonel Ndwandwe of 14 November 2018, made moments before he
testified.
This was at the request of Mr Mavatha who had submitted
that it contained allegations inconsistent with the Colonel’s
evidence
in court and inconsistent with an earlier pro-forma written
statement made by the Colonel. This pro-forma statement was later
admitted
into evidence, as exhibit P1-15 during the evidence of the
accused. It was suggested to the Colonel that paragraph 6 of exhibit
K contained a recording of something allegedly said by the accused to
the Colonel but which had not been recorded in the pro-forma
written
statement, that is exhibit P1-15. The recordal in paragraph 6 of
exhibit K is to the effect that the accused had told
Colonel
Ndwandwe that he had been at Maponya Mall on the day of the incident
and had then gone to visit his girlfriend in Zola.
This evidence had
not been led by Ms Ranchod. Colonel Ndwandwe said that this recordal
had not been made in his earlier written
pro-forma statement as he
had intended to make a fuller statement later. In my view, for
reasons set out below, it is irrelevant
that the recordal is in
exhibit K but not in the earlier pro-forma statement.
37.
Percy
testified that he had seen moving images on Colonel Ndwandwe’s
laptop. Colonel Ndwandwe was firm in his evidence that
he had showed
still images to Percy. In my view, the difference is irrelevant. In
paragraph 11 of exhibit A, which is a list of
admissions made by the
accused under
section 220
of the
Criminal Procedure Act, exhibit
G is
described as “
The
photo album compiled by w/o Z A Kutumela from the video recording of
the 23 August 2017, obtained from ABSA Bank, Maponya Mall.”
38.
The
repeated demand of the attackers in asking “
where
is the money
”
rather than demanding valuables generally, or rather than demanding
to know if the family had money shows that the attackers
knew that
the family had money. Given that the family had obtained the cash
only about 15 minutes before the attack and had driven
straight to
where the attack occurred, the demand for “
the
money
”
links the attackers to the family’s visit to the bank. At least
one of the attackers must have been at the bank when
the family drew
the cash or he must have had recent knowledge of the fact that the
family had just drawn cash from the bank. Percy
testified that a man,
who was not the accused, had acted suspiciously outside the bank.
39.
In
paragraph 7 of exhibit H1 and in paragraph 7 of exhibit H2 the
statement is made by Percy that the owner of the funeral parlour
did
not know that the family had made a cash withdrawal. Evidence to this
effect was not lead by Ms Ranchod but the allegation
became evidence
when exhibits H1 and H2 were entered into the record at the request
of Mr Mavatha.
40.
By
agreement, exhibit L was handed up. It contains admissions, made by
the accused and recorded under
section 220
of the
Criminal Procedure
Act, to
the effect that the CCTV video recording, later to become
exhibit N, made at the Maponya Mall branch of Absa bank on 23 August
2017 has not been tampered with and that it shows the accused wearing
a black cap and a black jacket “
as
shown on Exhibit G
”.
It is further admitted by the accused that he was in the branch at
the time indicated and that while he was in the bank
he did not carry
out any transactions.
41.
Mr
De Wet testified. He was in the SAPS for about 18 years. He has
worked for Absa for 7 years. He is a national investigator for
Absa
for violent crimes and integrity management. The Maponya Mall branch
of Absa had about 30 or 31 working cameras on the day
in question. He
viewed footage and made a composite video of about an hour long. This
video was handed in as exhibit N by agreement.
Exhibit M1-15 is a
series of still pictures taken from the video. Picture M10 is cut off
on the right hand side. The accused is
not visible in M10. Mr De Wet
testified that the accused is visible on the right hand side of the
relevant portion of the
video, looking at the family receiving cash
from the teller and that the accused can see the family receiving
cash.
42.
Mr
De Wet explained photos M1-15. In M1, at 11:03:30am the family enters
the bank. In M2, at 11:22:51 spotter 1 enters the bank
with his head
covered by a hoodie. In M3, at 11:36:28 spotter 2 enters the bank
wearing a cap. In M4, at 11:42:32 the accused is
seen just having
entered the bank. In M5, at 11:42:40 spotter 2 leaves the bank before
the family leaves. In M6, at 11:42:43 the
family is seen at teller 7.
In M7, at 11:42:43 spotter 1 is seen leaving the bank. In M8, at
11:42:47 the family is seen, at the
top, middle of the picture, at
teller 7. The accused is seen in the top right of the picture,
wearing a cap and looking at the
family which is at teller 7. In M9,
at 11:42:53 while the family is still at teller 7, spotter 2 walks
towards the camera, but
within the roped queue area, that is in a
direction opposite to that in which the queue is moving. In M10, at
11:42:54 the family
is still at teller 7 but spotter 1 is leaving the
teller area while spotter 2 is leaving the queue area, that is
walking in the
opposite direction of the queue but within the roped
queue area. The accused, according to Mr De Wet, is to the right of
M10 and
not in it but is in the video looking at the family taking
money at the teller. It was common cause, during cross-examination of
Mr De Wet that the accused, in the video at M10 is to the right of
the queue and looking at the family. It was put to Mr De Wet
that the
accused could not see the cash being handed over to the family. In
M11, at 11:43:03 the accused is the last person at
the back of the
queue. The family is still at teller 7. In M12, at 11:43:12 the
accused is seen directly in front of the camera
but no longer in a
queue. M12 is the same photo as G2 and G3. M13, at 11:43:24 shows the
accused at the back of the queue but facing
towards the exit. M14, at
11:43:26 shows the accused, at the back of the queue but facing away
from it and towards the exit. The
accused is leaving the queue. M15,
at 11:42:50 shows one of the family leaving the bank with a bag in
his hand.
43.
In
court, and in the presence of Mr De Wet, Mr Mavatha and Ms Ranchod, I
viewed, on a laptop operated by Mr De Wet, portions of
a video stored
on a compact disc which disc was handed up, by agreement as exhibit
N. I invited the accused to the bench to view
the video but he
declined, saying that it was sufficient that Mr Mavatha was there.
Both Mr Mavatha and the accused had earlier
viewed the video. The
video had been made by Mr De Wet. He explained certain parts of the
video. In particular, he said that at
11:42:28 the accused comes into
view on the right of the picture. Mr De Wet testified that at
11:42:43, corresponding to M6, the
accused can see the teller with
cash. At that point the accused is joining the queue at the back. The
queue is a snaking queue,
that is with two rows of people, with each
row facing a different direction. At the moment when the accused
joins the queue he
is right next to the person at the head of the
queue and he is about, at most, 6 or 7 meters from the teller.
At 11:42:57
cash is handed over to the family.
44.
From
my own observation, in M6, at 11:42:43 the legs of the accused are
visible in the top, middle of the image. In M8, at 11:42:47
that is four seconds after M6, the accused can be seen looking at the
family at teller 7.
45.
Mr
De Wet testified that the cash counting machine makes a distinctive
whirring noise which would have been audible to the accused,
assuming
that he had normal hearing. At no time was the accused ever at a
teller. The accused left the bank about two seconds after
the family
left. The identity of spotters 1 and 2 remains unknown. Neither
spotter 1, nor spotter 2 did any transactions while
they were in the
bank. The accused did not have any account with Absa on the day in
question.
46.
Mr
De Wet denied influencing either Ms Mollo, Percy or Colonel Ndwandwe.
47.
Mr
De Wet identified Mr Cindi as a suspect because he clearly was a
spotter who had left the bank immediately after the family had
left
with their cash, he having seen the family receive their cash. Mr De
Wet had compared the accused’s image with that
in a data base
of persons involved in robberies kept by Absa. Mr De Wet conceded
that the accused had never been convicted in any
Absa robbery case.
48.
By
agreement, a written statement made by Mr De Wet to the police on 24
August 2017 was admitted into evidence as exhibit O1-6.
This was at
the request of Mr Mavatha who had suggested to Mr De Wet in
cross-examination that his statement in paragraph 2 of
exhibit O, to
the effect that spotters will refrain from going to the scene of the
robbery, contradicted Mr De Wet’s testimony
in court to the
effect that spotters might go to the scene of the later robbery. In
my view, there is no relevant difference between
Mr De Wet’s
written statement and his testimony in court. Mr De Wet explained
that, in effect different syndicates use different
methods at
different times.
49.
In
paragraph 4 of exhibit O, the statement is made by Mr De Wet that
“
The
person from the Funeral Services however insisted in ‘Cash
Notes’
.”
This statement contradicts the statements in paragraphs 7 of exhibits
H1 and H2. It is not necessary for me to resolve
the conflict as in
my view, there is no possibility, reasonable or otherwise that the
undertakers were part of either the surveillance
at the bank or the
attack outside the undertakers.
50.
Mr
Cindi testified in a vague and evasive manner. At the time of the
incident he lived in Thembisa. He did not know Soweto well.
He took
no part in the attack. He was at Maponya Mall that day. He had gone
there to meet a friend called Leonard. He must have
gone there to
meet Leonard because that is the only reason why he would have gone
to Maponya Mall. He roamed around the mall, waiting
for Leonard. He
recalled entering the bank only when shown the video, sometime after
his arrest in January 2018. He was not a client
of Absa at the time.
He cannot recall what he was doing in the bank that day. He had
frequently done transactions at that branch
of Absa. He conceded not
having done any business at the bank that day and not having made any
enquiries there. He could not recall
why he left the bank. He
suggested that perhaps he had received a message from Leonard or he
perhaps had realised in the bank that
he had left documents behind.
He had been to Maponya Mall a number of times before the day in
question and after it. He and Leonard
used to go to a favourite shop
of Leonard in Maponya Mall called Ndlovin. He does not recall where
he went after leaving the bank.
51.
Very
little of the accused’s evidence had been put to state
witnesses despite Mr Mavatha having had ample opportunity
throughout the trial to consult prior to completing
cross-examination. I infer that the alibi-type defence raised is
recent fabrication
by the accused.
52.
He
denied having seen the teller handing money over to the family. When
asked to explain why he was looking at teller 7, where the
family
was, as depicted in exhibit M8, he said that one looks around when
one has walked into a bank. He said that he did not hear
the sound of
money being counted by the teller. He did not testify that his
hearing was other than normal.
53.
I
have a reasonable doubt that the accused saw cash being handed over
to the family. Mr Mavatha made the valid point that the camera
showing cash being handed over to the family was behind the teller
and at an angle to him or her. That said, the evidence is
overwhelming
that the accused was part of a group, consisting of at
least three people in the bank, namely himself and spotters 1 and 2.
This
group was clearly not in the bank for the purpose of transacting
legitimate business. Rather, it was there on the lookout for
customers
making large cash withdrawals. In my view, the possibility
that two syndicates, independent of each other, were operating
simultaneously
in the bank is so remote that it can be excluded.
54.
The
accused conceded not having met Mr De Wet. He could not say that Mr
De Wet had influenced Ms Mollo or Percy. The accused
testified
that an associate of Mr De Wet, Brenda, had assisted Mr De Wet. In
2013 she had brought pictures to the accused while
he was in
Modderbee prison. The accused suggested vaguely that Ms Mollo and
Percy had implicated him because Brenda had earlier
been in
possession of pictures of him as a suspect in Absa bank crimes. The
existence of Brenda had not been put to either Colonel
Ndwandwe or Mr
De Wet in cross-examination, even though it had been put to both that
they had influenced witnesses.
55.
The
accused testified that he did not say to Colonel Ndwandwe, as
recorded in paragraph 6 of exhibit K, that he had gone from Maponya
Mall to visit his girlfriend in Zola. It is not necessary for me to
decide whether in fact the accused did tell Colonel Ndwandwe
that he
went to Zola on the day in question. I shall assume, in favour of the
accused that he did not say it. With reference to
exhibit P1-15,
referred to below, once the accused had indicated to the Colonel that
he wanted to remain silent, the Colonel should
have left it at that
and not proceeded to ask the accused where he had been on the day in
question.
56.
I
admitted into evidence, as exhibit P1-15, the warning statement by
Colonel Ndwandwe of 15 January 2018. The year 2017, seems erroneously
to have been inserted in this exhibit. This exhibit was admitted in
evidence at the request of Mr Mavatha as it contained a statement
that had been signed by the accused below words by him to the effect
that he chose to remain silent. This evidence is relevant
to rebut
the evidence in paragraph 6 of exhibit K to the effect that the
accused had told Colonel Ndwandwe that he had gone to
Zola to see his
girlfriend. For the reasons set out in the previous paragraph the
statement about the accused having gone to Zola
is inadmissible.
57.
The
accused did not suggest, when he testified, that he was licensed to
possess a firearm or ammunition.
58.
The
identifications by Ms Mollo and Percy of the accused in the office of
Colonel Ndwandwe tend to show, with some weight, that
Ms Mollo and
Percy were able to identify one of their attackers. Their dock
identifications of the accused are, in my view, relevant
evidence
against him. Both Ms Mollo and Percy had managed to get a good, close
up look at the accused during the attack.
59.
Both
Ms Mollo and Percy could have testified dishonestly that they had
seen the accused in the bank. They did not. This reinforces
their
honesty. Honesty is part of reliability and the state’s case is
premised, in part, on the reliability of Ms Mollo and
Percy.
60.
Mr
Mavatha’s main point on the reliability, apart from the
honesty, of Ms Mollo and Percy regarding the events in Colonel
Ndwandwe’s office is that their identifications are unreliable,
allegedly because they had been shown moving video footage
featuring
the accused before they were shown still images. The argument here is
that once their attention had been improperly focused
on the accused
in the video their identifications of the accused a few moments later
were the result of suggestion rather than
spontaneous and accurate
recognition. In my view, this argument does not hold water. Firstly,
the argument does not apply to Ms
Mollo. She had viewed still images
only. Secondly, even if Percy had seen a moving video, this video
contained images of many people
in the bank. The people in the video
are exclusively, or almost exclusively black people of whom many are
men, as is the accused.
61.
During
the evidence of Ms Mollo, Percy, Colonel Ndwandwe and Mr De Wet, the
words, “
video
”,
“
footage
”,
“
images”
and “
still
images”
were used interchangeably. The still images in the evidence before me
are all taken from the video admitted into evidence as exhibit
N.
62.
It
matters not that Mr De Wet influenced Colonel Ndwandwe, if that is
what he did, by saying to him, directly or indirectly that
the
accused was a suspect. So long as neither Mr De Wet nor Colonel
Ndwandwe influenced Ms Mollo or Percy, their evidence as to
identification in Colonel Ndwandwe’s office is not excluded.
63.
The
day after the attack Percy told the police that he could identify his
attackers. This appears from paragraphs 6 of exhibits
H1 and H2.
64.
Both
Ms Mollo and Percy impressed me as honest, reliable witnesses. They
readily conceded what they had not seen. They made no attempt
to
exaggerate. They answered all questions put to them without evasion.
65.
Colonel
Ndwandwe and Mr De Wet impressed me as honest and reliable witnesses.
They gave the impression of witnesses simply telling
me what they
knew, without evasion or addition.
66.
If
I am wrong about the admissibility of paragraphs 7 in exhibits H1 or
H2, to the effect that the undertakers did not know that
the family
was carrying cash, or wrong about this evidence carrying any weight,
then in my view the state’s case is not significantly
weakened.
Without the contents of paragraphs 7 in exhibits H1 or H2, the
state’s case remains overwhelming.
67.
If
I am wrong about the admissibility of the identifications by Ms Mollo
or Percy, either in Colonel Ndwandwe’s office or
in court, or
in attaching significant weight thereto, in my view the balance of
the evidence against the accused is so strong that
convictions must
follow. The attack on the family, 15 minutes after they had left the
bank, could only have been by persons either
staking out the bank or
cooperating with those who did. The accused was clearly part of the
syndicate at the bank. The accused’s
evidence is, in all the
circumstances not reasonably possibly true.
VERDICT
1.
Count
1 – Murder – guilty.
2.
Count
2 – Robbery with aggravating circumstances – guilty.
3.
Count
3 – Attempted murder – guilty.
4.
Count
4 – Attempted murder – guilty.
5.
Count
5 – Unlawful possession of a firearm – guilty.
6.
Count
6 – Unlawful possession of ammunition – guilty.
WRIGHT J
Judge of the High
Court
Johannesburg
Date of Hearing:
12 November 2018 – 22 November 2018
Date of Judgment:
23 November 2018
Appearances:
On behalf of the state:
Adv P P Ranchod
Instructed by:
NDPP
On behalf of the Accused:
Adv A Mavatha
Instructed by:
Legal Aid